Canada: The Risks Of Scaling Up Ottawa's Heritage Register

Over the past several years, many Ottawa property owners have received notice that their properties have been listed in the register of the city's Heritage Inventory Project. This project, pursued under the Ontario Heritage Act ("OHA"), is intended to identify and better protect Ottawa's historic buildings. In 2018, the City of Ottawa issued an unprecedented number of notices, totaling over 1,700 as of May, 2018, with the list yet to be finalized.1

The speedy evaluation of individual neighbourhoods for buildings of purported heritage interest has shocked residents and owners alike. More than 10% of the properties in Old Ottawa East and South were added to the heritage register when the neighbourhoods were canvassed in 2016.2 This trend has only increased in subsequent years as more areas of the City have been canvassed. Many owners have been surprised that their buildings, some lacking any obvious historical value, have been added to the list. Although the listings appear random, there are standards to which the City must adhere. Any property listed must be of interest according to the Heritage Inventory Project's design test and the neighbourhood heritage statement attributes.

The list has not been limited to homes; commercial buildings have been proposed to be added, including office buildings, as have places of worship, and a variety of other forms of use.

Despite the commonly held assumption, being added to the register does not indicate designation as a heritage building. Rather, it serves to identify a building of heritage interest, for which the City would like a chance to consider its heritage value before it is demolished.

The Purpose of the Register

Section 27 (1.2) of the OHA allows municipalities to keep a register of properties not designated Heritage buildings, but which they believe to potentially be of cultural heritage value or interest.3

The register may include property … that the council of the municipality believes to be of cultural heritage value or interest.

The purpose of this section is to address a common problem faced in protecting heritage buildings across the province: buildings being demolished and replaced before they can be assessed for their heritage value.4 Through the creation of a register, the City argues that it can better ensure buildings are not lost before being identified or formally recognized in the long heritage designation process. For example, in the event a building of interest was slated for demolition, City planners would have 60 days to assess a building to determine if it warrants protection. This is contrasted with the 20 days typically required pursuant to the Building Code Act for a decision to be made on a demolition permit. The City can quickly canvas neighbourhoods, identifying buildings which may be of cultural value or interest and rely on the 60 day notification period to determine if the building should be saved when the risk of demolition arises.

For mass numbers of heritage properties protecting the look and feel of a community, Heritage Conservation Districts are another tool available under the OHA. We argue that due to the degree that entire neighborhoods are being added to the register, this would be better addressed through the checks and balances and public process associated with Heritage Conservation Districts as contemplated under Part V of the OHA. The authors further note that if a Heritage Conservation District was created with a study or plan that predates 2005, the District itself may not be enforceable at law, as a result of a recent Ontario Municipal Board decision.

Full heritage designation under Part IV of the Ontario Heritage Act

In the event a property on the Heritage Register is slated to become demolished, the City will determine if it should be fully designated under Part IV of the OHA and protected from development. Part IV of the OHA5 gives municipalities the right to designate properties for heritage protection if the properties meet certain conditions. In Ottawa a property can meet this designation if it exhibits design, physical, historical, associative, or contextual value6. If heritage status is approved by the City, homeowners will then require approval from the City of Ottawa in order to demolish the property or to obtain a building permit on the property for any alterations that could affect the property's cultural heritage value.7

Will being listed on the Register affect your property?

As the City continues to list buildings in more areas of Ottawa, citizens have been increasingly concerned that listing could reduce their autonomy over their homes or buildings and could cause their property values to plummet.8 The City has been trying to alleviate these fears with assurances that being placed on the register does not indicate the first step in heritage designation nor does it impose any of the major burdens on the homeowner normally associated with heritage status.9

In reality, the register imposes only one duty, a mandate that the City be provided written notice 60 days prior to demolishing the building. Homeowners on the register are not mandated to contact the City for any other reasons and can renovate, alter, and even put an addition onto the house with no oversight.

Despite this, the uncertainty associated with being designated and the possibility of heritage designation being imposed at a later date could still have a very real effect on property values.

Being added to the registry also adds a very real possibility of constraint on future development prospects. The potential of the property being designated as a heritage property provides an uncertainty that would be engrained in any development proposal.

What should you do if you receive a notice?

If notice is received to add your property to the heritage register, and you believe that your property may not in fact have heritage value, it is possible to obtain assistance that rebuts the City's argument that a property should be added to the register. This evidence is best put forward by a heritage planner or architect. Further, legal advice is recommended to develop a strategy to deal with this possibility.

Footnotes

1 Ottawa, Online Information Circular "Individual Designation" online:

2 Kieran Delamont, "City looks to add 11% of Old Ottawa East and South properties to heritage register", (August 21, 2017), Ottawa Business Journal online: .

3 Ontario Heritage Act, RSO 1990, at s 27(1.2).

4 Michael McClelland, "A better way to protect Toronto's heritage buildings" (April 3, 2017), The Star online: .

5 Supra, note 3 at Part IV.

6 Ottawa, Application Form, "Heritage designation under Part IV of the Ontario Heritage Act" online:

7 Ottawa, Online Information Circular "Changes to Heritage Properties" online:

8 Jon Willing, "Landowners don't buy city's sell job on heritage registry" (July 13, 2017), The Ottawa Citizen online: .

9 Ibid.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions